Immigration law doesn't mean just what you want it to mean

The professor thought it would be easy to teach Arizonans that Senate Bill 1070 actually does allow racial profiling. After all, it's printed right there in black and white.

"But it seems that I wasn't prepared for the element of wishful thinking," said Gabriel "Jack" Chin from the University of Arizona Rogers College of Law. "People here want the law to mean what they hope it means. Well, that is not how we do law. We have legally defined terms with established meanings."

In court, that may be true. But not in politics. And not to angry citizens who want something, anything done about illegal immigration.

In an analysis that Chin did for The Arizona Republic back when the law was passed, and then again in an essay he co-wrote for the Washington Post with University of California-Davis professor Kevin Johnson, Chin points to the language in SB 1070 that OKs racial profiling.

It reads: "A law-enforcement official or agency of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution."

If the sentence had ended after the word "subsection" racial profiling would be banned.

"But legislators included the phrase saying 'except to the extent permitted . . . ' That tells you that there is an exception," Chin said, "If the legislators in Arizona really didn't want profiling to come into play, there would be no exception."

He points to a U.S. Supreme Court ruling from 1975 known as United States v. Brignoni-Ponce. In it, justices decided that "Mexican appearance" was a "relevant factor" during immigration stops.

In their essay for the Post, Chin and Johnson wrote, "Supporters and opponents of SB 1070 assume that racial profiling is unconstitutional, largely because many Americans believe that it ought to be. In fact, the U.S. Supreme Court has approved the racial profiling permitted - indeed encouraged - by SB 1070."

The fact that the Arizona law allows for racial profiling isn't the only misconception about SB 1070 that frustrates Chin.

"Another of the biggest misstatements about SB 1070 is that it is simply a method for the state to mimic federal law," he said. "The truth is this law is different from federal law."

By making immigration violations a state crime, Arizona is taking away the federal government's "discretionary power" over how to prosecute immigration cases, Chin believes.

That is why he thinks the federal lawsuit challenging the law will prevail.

"There is a desire among all of us to have simple solutions to complicated problems," Chin said. "I understand that. It's a cultural thing. There is a cycle in American history. For close to 200 years, whenever there is a combination of new immigration and economic anxiety, things like this happen. You get laws like SB 1070."

When the economy picks up, the antagonism toward immigrants tends to wane. Until that happens, Chin expects to be kept busy by media types from all over the country looking for legal insight into SB 1070.

"There is a lot of work that I could be doing and wish that I was doing, but that has gotten overwhelmed by concerns about this law," he said. "It's particularly difficult to try to have a legal discussion when there is so much emotion involved on all sides."

And that's even before we consider the law's negative impact on the state, the fact that it does nothing to secure the border, and then try to figure out how it will cost to enforce the law and if other services will need to be cut.

"All good questions," Chin said. "Important questions. But from where we are now, I don't have high hopes for rational discourse."